15-005679 Nesha Butterfield vs. Department Of Management Services, Division Of State Group Insurance Status: Closed Recommended Order on Monday, March 7, 2016.

Summary: Petitioner did not prove entitlement to reimbursement for non-covered medical treatment under her health plan.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

NESHA BUTTERFIELD,

Petitioner,

vs. Case No. 15 - 5679

DEPARTMENT OF MANAGEMENT

SERVICES, DIVISION OF STATE

GROUP INSURANCE,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted in this

case on February 22, 2016, by way of video teleconference with

sites in Jacksonville and Tallahassee, Florida, before

Administrative Law Judge R. Bruce McKibben of the Division of

Administra tive Hearings.

APPEARANCES

For Petitioner : Nesha Butterfield, pro se

2545 Chesterbrook Court

Jacksonville, Florida 32224

For Respondent: Gavin D. Burgess, Esquire

Department of Management Services

Suite 160

4050 Esplan a de Way

Tallahassee, Florida 32399 - 0950

STATEMENT OF THE ISSUE

The issue in this case is whether PetitionerÓs claim for

medical treatment by Dr. Gutovitz should be paid under the terms

of her state health insurance plan.

PR ELIMINARY STATEMENT

By letter dated September 8, 2015, Respondent, Department

of Management Services/Division of State Group Insurance (the

"Department"), issued a letter to Petitioner, Nesha Butterfield,

denying her appeal of a claim for payment for certa in medical

services. Petitioner timely filed a request for formal

administrative hearing and the case was referred to the Division

of Administrative Hearings. Pursuant to notice, a final hearing

was scheduled on the date and time set forth above.

At the final hearing, Petitioner testified on her own

behalf and also called one addi tional witness, her mother,

Kim Stanley. PetitionerÓs exhibits 1 through 10 were admitted

into evidence. The Department c alled two witnesses:

Alexandra Kuykendall, d oct orÓ s o ffice employee; and

Kathy Flippo, nurse consultant for the Division of State Group

Insurance. The DepartmentÓs exhibits 1, 3 , and 5 through 8 were

admitted into evidence.

The parties advised that a transcript of the final hearing

would not be ord ered. The parties are allowed 10 days from the

date of the final hearing to file proposed recommended orders

(ÐPROsÑ). Each party timely submitted a P roposed R ecommended

O rder and each was duly considered in the preparation of this

Recommended Order.

FI NDING S OF FACT

1. Petitioner was, at all times relevant hereto, an

employee of the State of Florida, receiving medical benefits

under the State EmployeesÓ HMO Plan (the ÐHealth PlanÑ).

2. In January 2015, Petitioner contacted North Florida

OBGYN Associat es, P.A. (the ÐDoctorÓs OfficeÑ) , to schedule a

doctorÓs appointment. A computer screenshot provided by the

Department indicates that the purpose of the appointment was to

Ðdiscuss infertility/endometriosis.Ñ An appointment was

scheduled for March 22, 20 15.

3. Upon arrival at the DoctorÓs Office, Petitioner filled

out an intake sheet. She stated the purpose of her visit was

for the problems of Ðendo & checkup.Ñ She indicated that she

was not currently using birth control. As part of her medical

histor y, she indicated: migraine headaches, reflux/IBS/ulcer,

endometriosis, and infertility.

4. Upon completion of his examination and treatment of

Petitioner, Dr. Gutovitz dictated his ÐHistory & Physical

ReportÑ notes on the visit. He stated as follows:

Th e patient is a 29 year old female who

presents for a preconceptual consultation.

LMP date: (2/25/2015) The frequency of

cycles is monthly. The duration of menses

is less than 3 days. The menstrual flow is

moderate. The patient has never been able

to c onceive. The patient has been unable to

conceive after 2 years of unprotected

intercourse. Intercourse has been occurring

twice per week. There has been associated

abdominal pain, pain on intercourse, breast

tenderness (only when she is on her period)

a nd cramping (only in the morning and then

will go away). Vitamin and mineral intake:

currently on prenatal vitamins (taking

WomenÓs on e a day, vitamin b - 12, vitamin d,

calcium). Nutrition: normal /adequate.

Unknown. There is a medical history of

endomet riosis dx at the 20 by Dr. Samuel

Christian).

Pt. presents to discuss conception. She and

her partner have been trying to [get]

pregnant for 2 years. She reports at age 21

she had a lapar a scopy for pain and was

diagnosed with severe endometriosis and

ad vised to have a hysterectomy. She had no

follow up treatment, was not put on OCP.

She continue to pain with menses, with

intercourse and sometimes throughout the

cycle. She does have regular cycles about

28 days apart. The partner has never had

any chi ldren. He did have an injury to his

scrotum about 7 years ago (fell off a truck

onto some sharp object that Ðripped open my

scrotum in an L shapeÑ), had stitches,

significant swelling.

Discussed components of conception Î -

ovulation, pathway and semen. Referral to

the FIRM [Florida Institute of Reproductive

Management] for SA [sperm analysis], and

recommended consultation with Dr. Freeman.

Suggest lapar a scopy. CPT for the pelvic

pain. If covered by insurance, encouraged

patien t to have surgery done w ith

Dr. Freeman. However, if not covered (if

considered fertility intervention), would be

happy to perform this surgery.

Discussed fertile time in cycle, timing and

frequency of intercourse. Brief review of

fertility interventions. Pt happy with this

in formation, will proceed to AS and schedule

consultation with Dr. Freeman.

Also discussed patientÓs weight. Discussed

healthy diet and exercise. Pt considering

gastric sleeve procedure. Discussed some of

the pros and cons of this being performed

before or after fertility intervention.

Pt likely to postpone surgery at this point.

5. Dr. Gutovitz listed ÐInfertility, FemaleÑ as the

diagnosis. The plan of treatment called for the patient to

ÐFollow up with reproductive endocrinologist.Ñ There is no

mention of treatment for endometriosis.

6. It is clear from Dr. GutovitzÓ s notes that the purpose

of the visit was to discuss infertility. Although endometriosis

was mentioned, it was merely in a medical historical context.

7. Following her visit to the DoctorÓs Office, Petitioner

made an appointment with Dr. Freeman (as advised by Dr. Gutovitz

during the March 22 visit). She visited Dr. FreemanÓs office on

April 15, 2015. Dr. FreemanÓs intake sheet on the patient

indicate s the chief complaint as ÐP rimary infertility,

endometriosis/pelvic pain.Ñ Dr. Freeman discussed the

infertility issue, but noted Ð[Petitioner] is interested in

further evaluation and treatment but most interested in control

of her pelvic pain.Ñ Nonetheless, he noted that Petition erÓs

husband would undergo a semen analysis to determine his

fertility potential.

8. About a week later, Petitioner presen ted again to

Dr. Freeman for a follow - up visit. The doctor again addressed

and discussed her pelvic pain and how it might be treated . He

noted, Ð[Patient] is completely self - pay for fertility treatment

and wishes to defer on HSG currently to see if tubal patency

exists.Ñ He concludes his notes on that visit with:

At this point in time, [Petitioner] will

forward results of her primary care

physicianÓs lab work over to our office.

Once this occurs, we will meet for

reconsultation and likely undergo several

cycles of empiric ovulation induction as a

first step. If she does not become pregnant

with that, then we will likely perform HSG

to evaluate for tubal patency and consider

the possibility of surgery. At the

conclusion of the visit, they were

understanding of the above, in agreement

with the plan and rationale and had no

additional questions or concerns.

9. Empiric ovulation indu ction is a fertility treatment

that induces ovulation. An HSG procedure uses dye to assess

whether the fallopian tubes are blocked, i.e., whether there is

tubal patency.

10. Again, the doctorÓs notes and comments address

PetitionerÓs endometriosis and pelvic pain, but his primary

focus is on the infertility issue.

11. Petitioner contends the two physicians simply

misunderstood her needs or made a mistake when coding her office

visits. The preponderance of evidence does not support her

contention. Pet itionerÓs testimony concerning her claim was not

persuasive.

12. The Health Plan under which Petitioner was insured

contains an exclusion of payment for infertility treatments.

Section VI, Limitations and Exclusions, of the State EmployeesÓ

HMO Plan sp ecifically excludes payment for Ðinfertility

treatment and supplies,Ñ including testing, diagnostic

procedures, and treatment.

CONCLUSIONS OF LAW

13. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding pursuant to s ections 120.569 and 120.57(1), Florida

Statutes. Unless specifically stated otherwise herein, all

references to Florida Statutes will be to the 2015 version.

14. Petitioner has the burden of proof in this matter as

she is ass erting the affirmative of the issue. Balino v. Dep Ó t

of HRS , 348 So. 2d 349 (Fla. 1st DCA 1977). Nonetheless, at

final hearing the Department was asked to present its case in

chief first. This change in order of proof did not alter the

burden of proof. The standard of proof is by a preponderance,

or greater weight, of the evidence. See Osborne Stern & Co. v.

DepÓt of Banking and Fin. , 670 So. 2d 932 (Fla. 1996).

15. In this case, Petitioner did not meet her burden; the

evidence presented at final hear ing simply does not support her

position in this matter.

16. In these cases, if a p etitioner meets his or her

burden, the burden would then shift to the state agency to prove

that the requested relief was not covered due to a policy

exclusion. See Youn g v. DepÓt of Cmty. Aff. , 625 So. 2d 831

(Fla. 1993). As Petitioner did not meet her initial burden,

there is no shifting of the burden to the Department. Even if

it had, there is a clear exclusion for payment of infertility

services in the Health Plan.

RECOMMENDATION

Based on the foregoing Findings of Fac t and Conclusions of

Law, it is

RECOMMENDED that a final order be entered by the Department

of Management Services denying Petitioner's claim for

reimbursement of payments relating to her medical treat ments by

Dr. Gutovitz.

DONE AND ENTERED this 7th day of March , 2016 , in

Tallahassee, Leon County, Florida.

S

R. BRUCE MCKIBBEN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 A palachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 7th day of March , 2016 .

COPIES FURNISHED:

Nesha Butterfield

2545 Cheste rbrook Court

Jacksonville, Florida 32224

Gavin D. Burgess, Esquire

Department of Management Services

Suite 160

4050 Esplanade Way

Tallahassee, Florida 32399 - 0950

(eServed)

J. Andrew Atkinson, General Counsel

Office of the General Counsel

Department of Management Services

4050 Esplanade Way, Suite 160

Tallahassee, Florida 32399 - 0950

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any e xceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.